BRUCE D OERTEL, Applicant

SCHAEFER MOTOR SALES INC, Employer

REGENT INSURANCE CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed December 20, 2007
oertelb . wsd : 101 :  ND §§ 3.38, 9.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

1. Facts and posture.

On September 30, 2004, the applicant was injured while putting a transfer case in a truck, a job which required overhead work on a truck on a hoist. To install the transfer case, the applicant and a coworker were required to lift the case weighing 125 to 150 pounds, turn it vertically, line it up with the output shaft on the transmission and with the bolts, and push forward. On the date of injury, the men got the case lined up, and when the applicant tried to push it forward he felt pain in his back between his shoulder blades, shooting down his left arm.

The applicant filed an accident report upon returning to work on October 4, 2004. Specifically, exhibit B is an "accident/incident report" signed by the applicant on October 4, 2004, and his supervisor on October 7, 2004. This reports that an accident happened at 9:30 a.m. on September 30, 2004, while the applicant was lifting and installing a transfer case; that the applicant's upper back was injured with pain down his arm; that he had notified Brad Lord of the accident ten minutes after it happened; and that his coworker, Jason, was a witness.

The applicant testified that he continued to work with no lost time due to the injury, he experienced continuing neck pain that felt like a pulled muscle between the shoulder blades. He took over-the-counter Tylenol for treatment. In July 2005, the applicant took an off-duty, 16-hour (one-way) car trip to visit family in Arkansas and Mississippi. The evening he returned home to Racine, the applicant experienced shooting pain down his left arm while turning over and pulling blankets in bed.

The applicant was eventually diagnosed with cervical radiculopathy secondary to a disk herniation at C6-7. After attempting conservative treatment, the applicant agreed to undergo surgery, which was done by Grant Shumaker, M.D., on October 6, 2005, a discectomy, with placement of an allograft and a cervical plate.

Both parties submit expert medical opinion on the question of whether the applicant sustained an injury arising out of his employment when putting in the transmission case on September 30, 2004, and the extent of any such injury.

Dr. Shumaker's practitioner's report at exhibit K gives this description of the work injury:

Onset of neck and bilateral arm pain lifting and installing a transfer case at work on 9-30-04 with significant aggravation of pain following an extended motor vehicle trip in July 2005.

The doctor diagnosed a cervical disk herniation, and his report indicates that he believes the September 30, 2004, incident directly caused disability, while the July 2005 auto trip aggravated, accelerated and precipitated his pre-existing degenerative condition beyond normal progression. Dr. Shumaker estimated permanent partial disability at ten percent to the body as a whole for a limited range of motion in the cervical spine and swallowing discomfort issues.

In response to a letter from the applicant's attorney, Dr. Shumaker reported "the lifting episode directly caused the disc herniation at C6-7 with a secondary aggravation of that being the July 2005 motor vehicle accident." Exhibit M.

The employer and its insurer (collectively, the respondent) rely on the expert medical opinion of Richard A. Lemon, M.D., who did a record review on October 3, 2005, followed by a second report after examining the applicant on June 27, 2006.

After doing his record review, Dr. Lemon--noting treatment for neck pain in January 2002, an MRI in February 2002, and a motor vehicle accident in November 2002--opined the applicant had long-standing neck symptoms due to his pre-existing spondylosis, but unrelated to his employment and any alleged on-the-job injury. On this point, the doctor notes that while the applicant claims he injured his neck in September 2004, he did not seek treatment until July 2005 and in fact did not mention his neck complaints during an interim doctor's appointment with his family doctor in March 2004. Indeed, given the gap in treatment, Dr. Lemon felt there was significant doubt that the alleged on the job injury even occurred. Assuming the injury occurred as alleged, however, the doctor felt it caused at most a minor neck strain from which the applicant would have healed uneventfully within a month with no permanent disability.

Dr. Lemon offered this observation about the MRI scans:

[The applicant's] MRI of his neck obtained in 2005 is different from the MRI obtained in 2002. The MRI in 2002 showed degenerative changes at multiple levels with a mild disc bulge at C6-7 without focal herniation. Clearly, the focal herniation documented on MRI in July 2005 is related to [the applicant's] long car trip. This focal disc herniation is not related to any trauma which occurred 10 months earlier.

He added in response to a written interrogatory that the onset of increased neck symptoms in July 2005 represents a manifestation of his preexisting cervical spondylosis and that the applicant undoubtedly suffered a left-sided herniation at C6-7 due to his driving in that month.

After examining the applicant in June 2006 and reading the additional medical records, Dr. Lemon felt his initial opinion was reinforced. Explaining the mechanism of what caused the disc herniation, Dr. Lemon noted that the applicant had been able to work without medical care after the injury on September 30, 2004, and went on to observe:

In July 2005, Mr. Oertel clearly had a significant increase in his neck and left arm symptoms. Mr. Oertel was driving for 50 hours over a two-week period. I believe that Mr. Oertel suffered a degenerative C6-7 herniated disc in July of 2005 aggravated by his driving, as well as his mechanism of pulling a blanket over himself in bed that evening. Mr. Oertel had the sudden onset of severe neck and left arm symptoms consistent with an acute herniated disc. Mr. Oertel's degenerative herniated disc that occurred in July 2005 [has] no relationship whatsoever to his employment [for the employer] or his alleged on-the-job injury of September 30, 2004.

Exhibit 1, June 29, 2006 report of Lemon, page 10.

The matter went to hearing, and the presiding ALJ concluded that the applicant sustained an accidental neck injury while installing the transfer case on September 30, 2004, noting particularly that the applicant reported the injury on October 4, 2004.

The more problematic issue, the ALJ felt, was how much disability the injury caused. On this point, the ALJ observed that the applicant had been able to work without treatment or restriction for 9 months after the work injury and the fact of the two-week cart trip just before the disabling symptoms. However, the ALJ credited the applicant's testimony that he had pain shooting into his left arm with the work injury in September 2004, which lessened to a nagging pain between the shoulder blades. She noted this testimony was consistent with what the applicant told the practitioners who treated him during the course of his injury, including emergency room personnel, Dr. Tolson, Dr. Rafiullah, and Dr. Shumaker. The ALJ concluded that Dr. Shumaker had an accurate understanding of the onset and progression of the applicant's condition, and awarded compensation based on his opinion.

2. Discussion.

The respondent appeals, raising the points made by Dr. Lemon, particularly that there were pre-existing degenerative changes even before September 30, 2004, and that applicant was able to work without restriction after that date until the sudden onset of complaints in July 2005. The respondent also noted that the applicant testified about back pain, not specifically neck pain, with the event of September 30.

However, the commission agrees with the ALJ's careful analysis in this case and affirms her decision.(1) The ALJ saw the applicant testify and found credible his testimony about his symptoms following the work injury. The commission sees no reason to question this credibility, especially as the applicant gave a substantially consistent history to all of his doctors upon beginning to treat in July 2005. The accident report written in October 2004, only days after the injury, noted both upper back and arm pain. This report was written very near in time after the work injury and well before the dramatic increase in symptoms in July 2005. There was no reason for the applicant to have invented an injury at that point if he did not actually experience one--it is implausible he would have done so anticipating an injury or exacerbation of symptoms that would not happen for several months. Again, the October 4, 2004 report mentions the arm pain, supporting not only the applicant's hearing testimony but also indicative of radicular symptoms within days of the September 30, 2004 injury.

Dr. Lemon does not satisfactorily address the symptoms set out in the October 4, 2004 accident report, and in fact suggests the injury did not even happen. He says the herniation undoubtedly happened in July 2005, but that seems to be based on his belief the applicant either did not suffer an injury in September 2004 or had recovered from the injury without residual disability or complaint, something directly contrary to the applicant's credible hearing testimony. While the MRI done in September 2005 showed a herniation, that does not rule out a herniation or other disc injury in September 2004 which worsened in 2005. The commission, like the ALJ, concludes that treating doctor Shumaker's opinion is more credible than Dr. Lemon's on this record.

What of Dr. Shumaker's statement that the days of off-duty driving in July 2005 aggravated the applicant's condition? The applicant cites Lange v. Ideal Door Company, WC claim no. 91003958 (LIRC, September 29, 1994), reversed and remanded sub nom. Todd E. Lange v. LIRC, Ideal Door Company and Fireman's Fund Ins. Co., 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App., 1997), where the commission noted:

... a reinjury may be compensable if it is caused by the weakened condition of a worker, or where the work-related injury made the worker more vulnerable to reinjury, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 608-09 (1929) and Burton v. ILHR Department, 43 Wis. 2d 218, 228-228a (1969). In Burton, for example, a fireman who injured himself when he slid down a firepole was found to have so weakened the disc structure so that a disc protrusion caused by a sneezing attack nearly a year later was held to be compensable.

Likewise, Professor Larson states that an off-duty reinjury is compensable when "the episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury." 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). In Wisconsin, if medical proof establishes that the residual effects of a compensable injury cause a subsequent off the job reinjury, the employer is liable for the subsequent reinjury. In such cases, courts will examine whether the work injury is a "substantial factor" in the off-duty reinjury. Neal and Danas, at section 3.37.

Although the court of appeals did not accept the commission's ultimate conclusion the prior work injury was not a substantial factor in Mr. Lange's disability following a subsequent off-duty slip-and-fall, the court did observe:

In its decision, LIRC did not discuss in great detail the extent to which the work-related and non-work-related injuries must be connected before the first injury can be considered to be a substantial factor in the second injury. LIRC did note that a re-injury is compensable if it is caused by the weakened condition of a worker, Western Lime & Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304 (1928), or if the work-related injury made the worker more vulnerable to re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d 196, 200-01 (1969). LIRC also specifically concluded that Lange's second injury "alone was responsible for the dramatic change," thereby implying that if the first injury was related to the results caused by the second injury, the injury would be compensable.

We agree with this implicit conclusion. A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.

Lange v. LIRC, 215 Wis. 2d at 567-68.

Dr. Shumaker's opinion establishes that the applicant's injury and disability as awarded by the ALJ are indeed compensable under Lange. The only reasonable way to read Dr. Shumaker's practitioner's report and subsequent letter is that the disc herniation or injury occurred with the work injury in September 2004 causing the continuing symptoms the applicant experienced thereafter, but then was aggravated symptomatically by driving in July 2005. In other words, the original work injury played a part in any second injury or aggravation from driving (or, under Dr. Lemon's opinion, turning in bed), and that any such second injury alone would not have caused the same disability had the September 2004 injury not occurred.

cc:
Attorney James A. Pitts
Attorney John E. Drana

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(1)( Back ) In its brief, the applicant argues that the commission's role is to determine whether there is credible evidence to support the ALJ's decision. Applicant's brief page 4. However, that is the standard of review that reviewing courts apply to commission decisions under Wis. Stat. § 102.23(6), not the standard applied by the commission in reviewing an ALJ's findings. This is clear from the very cases cited by the applicant (Theodore Fleisner, Inc., v. DILHR, 65 Wis. 2d 317, 321-22 (1974) Amsoil, Inc., v. LIRC, 173 Wis. 2d 154, 164 (Ct. App. 1992)); neither case says--as the applicant states--that LIRC must affirm an ALJ decision if it is supported by credible evidence. Rather, as discussed in State v. Industrial Commission, 233 Wis. 2d 461, 465, 289 N.W.2d 769, 770-771 (1940):

...When review is asked, the findings and order [of an examiner or ALJ] can become effective only when supported by the findings of fact by the commission and order made thereon by such commission as a body. The commission in reviewing findings and order of an examiner does not act as an appellate body but under its powers in an original proceeding. The commission is to make its own determination. If the commission decides to hear additional testimony it may do so. The petition to review under the statute transfers to the commission as a body the duty of passing upon the merits of the case.

The applicant also suggests that it not the commission's role to determine which evidence or medical opinion is more credible, but instead that is the role of the ALJ. Again, the supreme court has:

 repeatedly said that it is the function of the Industrial Commission to evaluate medical testimony and determine its weight, and the commission's finding on disputed medical testimony is conclusive.

Giant Grip Mfg. Co. v. Industrial Com., 271 Wis. 583, 585 (1956).

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